Each year in Ontario and Canada, there are a number of drownings in farm ponds, waterways and lagoons. The danger of drowning has increased dramatically with the widespread adoption of liquid manure systems. These hazardous areas pose some unique problems for landowners. The liability situation with respect to this area is unclear with few legal precedents to offer guidance.
Liability
In Ontario, there is no specified body of law dealing with standing water or liquid holding systems. The hazards associated with such areas are generally dealt with in the principles of common law, which governs a landowner’s liability in a particular situation.
Generally, the degree of liability that a landowner owes to a person depends on that person’s status. Persons who come on to a property can be categorized as a trespasser, licensee or invitee. Trespassers are persons who enter the land without permission. A licensee is a person, such as a guest, who enters the land with the owner’s permission. An invitee is as business visitor to the land who may have been invited or is under some type of contract to enter the land.
A landowner owes a degree of care to all three categories of entrants. Individual circumstances will determine the degree of liability. Even trespassers (particularly children) are entitled to some type of protection.
Local bylaws
Many municipalities have sought to correct the hazardous situations with water hazards by enacting local by-laws, which require suitable protective structures be erected around the hazard. A good example of this type of by-law is the requirement for fencing around swimming pools, required by a majority of municipalities in Ontario.
Ponds, ditches & waterways
Owing to the size and proximity of natural waterways to traffic areas, it is often difficult to erect a protective structure that will be effective and at an economically reasonable cost.
Natural ponds, if they are remote to public access, will probably not require specific fencing (other than property boundary fencing).
However, if a natural pond or part of the pond is near a public access area, some type of fencing should be provided. Similarly, man-made irrigations ponds and ditches, if they are near public areas, should be fenced.
Liquid manure systems
Some municipalities in Ontario have enacted by-laws requiring that protective devices be erected around liquid manure systems. The purpose of these by-laws is two-fold: to keep people away from the hazard and to control odors.
As all liquid manure systems are in proximity of traveled areas on most farms, they should be fenced or guarded in some manner.
The Ontario Ministry of Agriculture and Food specifies in the agricultural Code of Practice that liquid and semi-solid manure storage systems have safety fences to protect humans and livestock.
The type of fencing required for manure handling systems will vary according to the design of the system.
All liquid and semi-solid manure handling systems should be posted with suitable warning signs and all points of entry secured.
